Filed 4/29/20 Marriage of Ward CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re Marriage of DONNA WARD and THOMAS ALLEN WARD.

DONNA WARD,

Respondent,

v.

THOMAS ALLEN WARD,

Petitioner.

A156599

(Contra Costa County

Super. Ct. No. MSD16-03246)

Thomas Allen Ward (Husband) appeals the family court’s order awarding spousal support and attorney fees to Donna Ward (Wife). We affirm.

BACKGROUND

Wife filed a divorce petition in 2016. The parties settled all issues except spousal support and attorney fees, which went to trial. After trial, the family court issued a statement of decision awarding Wife monthly spousal support of $5,000 (reduced to $4,000 in 2022), plus a percentage of Husband’s gross income in excess of his base salary. The statement of decision also ordered Husband to contribute $24,000 to Wife’s attorney fees. Judgment issued and Husband appealed.

DISCUSSION

I. Support Order

Husband challenges the family court’s interpretation and application of Family Code section 4320, subdivision (i) (hereafter, section 4320(i)). We reject the challenge.

Section 4320 “provides numerous factors for the trial court to consider when determining the amount and duration of spousal support.” (In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1150.) The factor at issue here, set forth in section 4320(i), requires consideration of “[a]ll documented evidence of any history of domestic violence, as defined in Section 6211,[ ] between the parties or perpetrated by either party against either party’s child . . . .” “ ‘In awarding spousal support, the court must consider the mandatory guidelines of section 4320.’ [Citation.] However, once it does so, ‘the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion.’ [Citation.] Appellate courts must act with ‘cautious judicial restraint’ in reviewing spousal support orders.” (In re Marriage of Left, at p. 1150.)

As an initial matter, Husband relies heavily on the family court’s oral statements at trial to support his claims of error. “[A] trial judge’s pre-judgment oral expressions do not bind the court or restrict its power to later declare final findings of fact and conclusions of law in the judgment. [Citation.] . . . Absent contrary indication in the final judgment or statement of decision, the appellate court will assume that, during the period before rendition of judgment, the trial court realized any error and corrected it.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268 (Shaw).) Instead, “ ‘[t]he statement of decision provides the trial court’s reasoning on disputed issues and is our touchstone to determine whether or not the trial court’s decision is supported by the facts and the law.’ ” (Ibid.) Accordingly, we will look to the statement of decision, not any oral comments, to determine whether the family court erred.

The court’s statement of decision discusses the 14 enumerated factors it was required to consider under section 4320. With respect to the section 4320(i) domestic violence factor, the statement of decision provides as follows: “[Husband] did not produce documented evidence of domestic violence by [Wife]. There were some mental health issues regarding all the parties, not unlike any other family in America. The Court finds that the parties endured difficulties with their son,[ ] and that a lot of intervention took place with therapists and Child and Family Services. The Court finds that while the family was not perfect, there was no child abuse by [Wife] and no child neglect by [Husband]. Over the course of the 32-year marriage, [Husband] accepted the [Wife’s] sometimes unreasonably aggressive and angry acts, but only when the conduct became an issue of dollars and cents in the divorce proceedings did the conduct become unacceptable for him. [Husband] may fear for his safety from [Wife], but the Court finds that his fear is unreasonable, and that [Husband] conjured the fear himself. In light of the foregoing, the Court does not accept [Husband’s] proffer of evidence concerning domestic abuse. [Wife] caused a situation that was not ideal, but none of her conduct during the course of the marriage rose to the level of domestic violence. The Court will not reduce or remove support payable by the [Husband] to the [Wife] going forward based on the analysis of this factor.”

Husband argues the family court refused to consider certain evidence submitted by Husband on this factor. Husband points to the following evidence: his and Son’s trial testimony, as “documented” in the reporter’s transcript; a redacted child welfare investigation report finding allegations that Wife physically abused Son, then 13 years old, to be unfounded; a request for a restraining order filed by Husband the week before Wife filed for divorce ; and Husband’s written interrogatory responses relating his account of a police investigation in 2017 and 2018 into allegations that Wife threatened to kill him. Husband contends the family court did not consider this evidence to be “documented” within the meaning of section 4320(i), pointing to the decision’s statement that “[Husband] did not produce documented evidence of domestic violence by [Wife].” But all of the above evidence was admitted at trial and the analysis in the statement of decision indicates the court considered all evidence submitted on the issue.

Instead, we construe the cited statement to mean the family court found, after considering all of the evidence, that Husband did not demonstrate domestic violence occurred—a finding of fact that we review for substantial evidence. (In re Marriage of Brooks (2019) 33 Cal.App.5th 576, 589 [“We review the trial court’s factual findings for substantial evidence.”].) Husband has forfeited any challenge to this finding by failing to present all of the evidence on this issue, both favorable and unfavorable, in his appellate briefs. It is “an elemental principle of appellate practice . . . that a party challenging the sufficiency of the evidence to support a factual determination made by the trier of fact is required to set out all evidence pertinent to that determination, on penalty of forfeiting review.” (Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 998; see also In re Marriage of Brooks, at p. 592 [“ ‘We do not review the evidence to see if there is substantial evidence to support the losing party’s version of events, but only to see if substantial evidence exists to support the verdict in favor of the prevailing party.’ ”].)

The family court did exclude an additional piece of evidence relied on by Husband in connection with the section 4320(i) factor: a printout of text messages written by Son during an argument between the parties. We need not decide whether this constituted “documented evidence” for purposes of section 4320(i) or whether the family court properly excluded the evidence as hearsay, because Husband has not demonstrated any error was prejudicial. Son testified at trial about the argument and the family court expressly noted that Son’s testimony “is in evidence, just not this [the text messages].” Husband identifies no evidence contained in the excluded text messages that was not also presented in Son’s trial testimony. Husband argues the text messages were “necessary to support [Son’s] testimony” about the incident, but there is no indication in the statement of decision that the family court did not credit Son’s testimony. Any error in excluding the text messages is harmless.

Husband also argues the family court used erroneous legal standards for domestic violence: rejecting evidence because it was too old and finding abusive conduct could not constitute domestic violence unless it met a “significant threshold,” caused “significant fear,” or resulted in a criminal conviction. Husband relies heavily on the court’s oral comments. The analysis in the statement of decision makes clear that the family court considered multiple factors in determining whether the evidence constituted domestic violence and did not impose any requirements relating to timing, significant thresholds, significant fear, or criminal convictions. “Absent contrary indication in the final judgment or statement of decision, the appellate court will assume that, during the period before rendition of judgment, the trial court realized any error and corrected it.” (Shaw, supra, 170 Cal.App.4th at p. 268.)

Finally, Husband argues the family court abused its discretion in refusing to reduce the support award based on the evidence of domestic violence. Even assuming some conduct that the family court found to have occurred met the legal definition of domestic violence, such a finding does not require the court to reduce the award. (In re Marriage of Left, supra, 208 Cal.App.4th at p. 1150 [“ ‘In awarding spousal support, the court must consider the mandatory guidelines of section 4320.’ [Citation.] However, once it does so, ‘the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion.’ ”]; cf. § 4324.5, subd. (a)(1) [“where there is a criminal conviction for a violent sexual felony or a domestic violence felony perpetrated by one spouse against the other spouse” within five years of a divorce petition, “[a]n award of spousal support to the convicted spouse from the injured spouse is prohibited”].) The court set the support award after considering all of the section 4320 factors—Husband does not discuss any of the factors other than section 4320(i). Husband has failed to demonstrate the support award was an abuse of discretion. (See In re Marriage of Left, at p. 1150 [“Appellate courts must act with ‘cautious judicial restraint’ in reviewing spousal support orders.”].)

II. Attorney Fees

“When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.” (§ 2030, subd. (a)(2).) “The court may make an award of attorney’s fees and costs under Section 2030 . . . where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) “In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.” (§ 2032, subd. (b).)

Husband argues the family court ordered him to contribute to Wife’s attorney fees pursuant to section 2030 “in retribution against [Husband] for raising issues under [section] 4320(i).” Husband relies exclusively on the court’s oral comments. The statement of decision reasoned as follows: “The Court finds that an order for attorney’s fees pursuant to Family Code section 2030 et seq. is just and reasonable in this case, taking into account all of the enumerated Family Code section 4320 factors, particularly the disparity in access to funds to pay fees.” The statement of decision does not support Husband’s contention that the family court ordered him to contribute to Wife’s fees in retribution against Husband. Husband has not shown error in the fee award.

DISPOSITION

The judgment is affirmed. Respondent shall recover her costs on appeal.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

In re Marriage of Ward / A156599